Citation NR: 9627465
Decision Date: 09/30/96 Archive Date: 10/07/96
DOCKET NO. 94-37 759 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Conner, Associate Counsel
INTRODUCTION
The veteran had active service from June 1964 to May 1967.
This matter comes to the Board of Veterans’ Appeals (Board)
from an October 1992 rating decision of the Department of
Veterans Affairs (VA) Denver Regional Office (RO). In his
March 1993 substantive appeal, the veteran requested a
personal hearing before a member of the Board at the RO. In
July 1993, he withdrew his request for this hearing.
In April 1994, the RO issued a statement of the case with
respect to the issues of entitlement to service connection
for a right shoulder disability and for loss of the front
tooth. However, the veteran has not submitted a substantive
appeal concerning these issues. Accordingly, this decision
will be limited to the issues noted on the preceding page.
REMAND
The VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
United States Court of Veterans Appeals (Court) has held that
the duty to assist the veteran in obtaining and developing
available facts and evidence to support his claim includes
obtaining adequate VA examination. This duty is neither
optional nor discretionary. Littke v. Derwinski, 1 Vet.App.
90 (1990). The fulfillment of the statutory duty to assist
includes conducting a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet.App. 121 (1991).
In Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set
forth the analytical framework for establishing the presence
of a recognizable stressor, the essential prerequisite to
support a diagnosis of post-traumatic stress disorder (PTSD)
and entitlement to service connection. There are two major
components to the analysis: first, whether the evidence
demonstrates that stressful events occurred; second, whether
the stressful events are sufficient to support a diagnosis of
PTSD.
With regard to the first component of the Court’s analysis
under 38 U.S.C.A. § 1154(b), 38 C.F.R. § 3.304(f), the
evidence necessary to establish the occurrence of a
recognizable stressor during service will vary depending on
whether the veteran “engaged in combat with the enemy.” See
Hayes v. Brown, 5 Vet.App. 60 (1993). This must be
determined through recognized military citations or other
service department evidence. 38 C.F.R. § 3.304(f).
The second prong of the Zarycki test holds that if there were
stressful events in service, it must be determined whether
the stressful events were of sufficient gravity to support a
diagnosis of PTSD. Zarycki, 6 Vet.App. at 98. In West v.
Brown, 7 Vet.App. 70 (1994), the Court held that the
sufficiency of the stressor is a medical determination.
Adjudicators may not render a determination on this point in
the absence of independent medical evidence.
In this case, the veteran’s DD 214 shows that he served in
Vietnam as a combat engineer. Service personnel records
indicate that he participated in various operations against
the Viet Cong forces. However, there is no service evidence
of record verifying his claimed stressors. Such verification
is necessary before a final determination may be made.
Likewise, while the February and April 1993 VA examination
reports note diagnoses of PTSD, the diagnoses were not based
on confirmed stressors from the veteran’s service in Vietnam.
The Board is therefore unable to determine at this time
whether the combat stressors to which the veteran was exposed
during active service produced his current symptomatology.
It is therefore the Board’s opinion that a new VA psychiatric
examination would be of great assistance in rendering an
appellate decision in this case. Green, 1 Vet.App. 121
(1991).
In addition, at his April 1993 and February 1994 VA
examinations, the veteran reported that he had been receiving
individual psychotherapy on a weekly basis from John L.
Sabata., M.S.W. at the Vet Center at Fort Collins. These
treatment records, however, have not been associated with the
claims folder.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claim, the case is
REMANDED for the following action:
1. The RO should contact the Vet Center
at Fort Collins and secure copies of all
clinical records pertaining to treatment
of the veteran’s psychiatric disorder.
2. The RO should contact the veteran and
ascertain whether he has had any VA or
private treatment for his psychiatric
disorder at any time since his separation
from service. After securing the
necessary releases, the RO should obtain
for inclusion in the claims folder copies
of relevant clinical records from care
providers identified by the veteran (not
already of record).
3. The RO should again request from the
veteran a statement containing as much
detail as possible regarding the alleged
stressful events to which he was exposed
in service. The veteran should be asked
to provide specific details of the
claimed stressful events during service,
such as dates, places, detailed
descriptions of the events, his service
units in Vietnam, duty assignments, and
the names, ranks, unit of assignment and
any other identifying information
concerning any OTHER individuals
involved in the events. The veteran
should be told that the information is
necessary to obtain supportive evidence
of the stressful events and that failure
to respond may result in adverse action.
4. The RO should review the file and
prepare a summary of all claimed
stressors from service. This summary,
and all associated documents, should be
sent to Marine Corps Historical Center,
Attn: Archives Section, Building 58,
Washington Navy Yard, Washington, D.C.
20374. If the information cannot be
obtained from this address, the RO should
then write to: Commandant of the Marine
Corps, Headquarters United States Marine
Corps, MMSB10, 2008 Elliot Road, Suite
201, Quantico, VA 22134-5030, for
verification of the claimed stressors.
5. The RO should arrange for a VA
psychiatric examination by a board of two
psychiatrists, if available, who have not
previously examined him to determine the
diagnoses of all of the veteran’s current
psychiatric disorders. The claims folder
and a copy of this REMAND should be made
available to the examiners for review in
conjunction with the examination. The RO
should specify for the examiners the
stressor or stressors that it has
determined are established by the record,
and the examiners must be instructed that
only those events may be considered for
the purpose of determining whether
exposure to a stressor in service has
resulted in current psychiatric symptoms
and whether the diagnostic criteria to
support a diagnosis of PTSD have been
satisfied. The examination report should
reflect a review of pertinent material in
the claims folder. The examiner should
integrate earlier psychiatric findings
and diagnoses with current findings to
describe the veteran’s current
psychiatric status with specificity. A
definitive diagnosis is essential. If
the diagnosis of PTSD is deemed
appropriate, the examiner should state
whether in-service events caused the
PTSD, and whether there is a link between
the current PTSD symptomatology and one
or more of the in-service stressors.
Symptomatology relating to other
neuropsychiatric disorders should be
clearly distinguished from symptomatology
traceable to PTSD. The report of
examination should include the complete
rationale for all opinions. All
necessary testing, including
psychological testing, should be
accomplished.
6. The RO should then review the record,
ensure that all the above actions have
been completed, and then readjudicate the
claim.
If the benefit sought on appeal is not granted, the veteran
should be furnished a supplemental statement of the case and
given an opportunity to respond. The case should then be
returned to the Board for further consideration.
JAMES R. SIEGEL
Acting Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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